FEDERAL COURT OF AUSTRALIA

Bahonko v Sterjov [2007] FCA 375

STANISLAWA BAHONKO v KOSTA STERJOV, SUSANNA STERJOV, LISA MILLER AND LA KOSTA CHILD CARE CENTRE AND KINDERGARTEN PTY LTD

VID 111 OF 2007

RYAN J

15 march 2007

MELBOURNE

THE COURT ORDERS THAT:

1.         The application for leave to appeal against each of the orders made respectively on 7 February 2007 and 23 February 2007 by Justice Jessup be refused.

2.         The applicant pay the respondents’ costs, to be taxed in default of agreement.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     By a notice of motion dated 27 October 2006 in proceeding numbered VID 756 of 2006, the present applicant, Stanislawa Bahonko, sought the following orders;

‘1.        Applicant is given leave to issue Subpoenas of Documents and to give Evidence upon the Respondents and persons who are I he [sic] possession of the relevant Documents and Evidence.’

2                     After one or two adjournments, the motion was heard by Jessup J on 7 February 2007 when his Honour also entertained a further motion on notice by the applicant dated 5 February 2007 in proceedings numbered VID 114 of 2006.  By that notice the applicant sought;

‘1.        Counsel for the Respondents M G McKenney stands down from representing Respondents’ in this matter due to conflict of interest.

2.         The Respondents are given warning in relation to the contempt of the Court.

3.         The jurisdiction of the Court be extended to include criminal jurisdiction and defamation law.’

3                     On 7 February 2007, his Honour made the following orders for which he published reasons of the same date;

‘1.        The motion of which the applicant gave notice on 27 October 2006 be dismissed.

2.         The motion of which the applicant gave notice on 5 February 2007 be dismissed.

3.         The respondents have leave to file and serve their Further Amended Defence on 25 January 2007.

4.         The Further Amended Defence filed and served by the respondents on 25 January 2007 stand as their Defence herein.

5.         The applicant’s Notice of Motion dated 22 September 2006 be adjourned to 9.00 am on 23 February 2007.

6.         The proceeding be listed for trial on 2 April 2007 with an estimate of 3 days.

7.         Costs be reserved.’

4                     By a further motion on notice dated 14 February 2007 in the present proceedings, which are numbered VID 111 of 2007, the applicant seeks orders;

‘1.        Applicant has leave to appeal Justice Jessup’s orders No: 1 to 6 given on 7 February 2007.

2.         Justice Jessup stands down from hearing the matter No: VID 114/2006.’

5                     By a yet further notice of motion dated 23 February 2007, apparently intended to overtake that of 14 February 2007, the applicant has sought these orders:

‘1.        Applicant has leave to appeal Justice Jessup’s orders No: 1 to 6 given on 7 February 2007.

2.         Justice Jessup stands down from hearing the matter No: VID 114/2006.

3.         Applicant has leave to appeal Justice Jessup’s orders given on 23 February 2007 (with exception as to those related to reserved costs).

4.         Applicant has leave to appeal from rulings made by Justice Jessup on 07/02/07 and 23/02/07.

5.         Trial set up to start on 2 April 2007 under Justice Jessup be put on hold.’

6                     The orders which had been made by Jessup J on 23 February 2007 were in response to another motion on notice by the applicant dated 22 February 2007, which sought these orders;

‘1.        Direction Hearing scheduled for 23 February 2007 is adjourned to a date to be fixed.

2.         Justice Jessup stands down from hearing the matter No: VID 114/2006.’

7                     His Honour, on 23 February 2007, dismissed that motion by orders in these terms;

‘1.        The motion of which the applicant gave notice on 22 February 2007 be dismissed.

2.         Upon the respondent by their counsel undertaking that they will, at or before 12 noon on 29 March 2007, deliver to the Registry of the court each of the documents referred to in Part 1 of Schedule 1 in their List of Documents verified by affidavit sworn on 31 March 2006 including the originals where relevant.

3.         The applicant have leave by appointment made with the Registry of the court to inspect the documents delivered pursuant to that undertaking.

4.         To the extent that it was not previously disposed of, the applicant’s Notice of Motion dated 22 September 2006, otherwise be dismissed.

5.         Costs be reserved.’

8                     In substance, it appears that the applicant seeks leave to appeal from orders 1 to 6 made by his Honour on 7 February 2007 and from his order of 23 February 2007 except insofar as it related to costs.  She also seeks an order that his Honour “stand down from hearing” the proceedings numbered VID 114 of 2006.  It is convenient to deal separately and in order with each of those claims for relief which, by seeking leave to appeal, the applicant concedes go to orders or rulings by his Honour which were interlocutory in character.  Before doing so, it is appropriate to set out, in summary form, the principles which have been established by authorities binding on me as governing the grant of leave to appeal from interlocutory orders. 

Principles governing leave to appeal

9                     In order to obtain leave to appeal in an application of this kind, the applicant must show that, in all the circumstances, the interlocutory orders are attended by sufficient doubt to warrant their reconsideration on appeal.  She must also show that a substantial injustice would result if leave were refused, supposing the decision below to be wrong.  See Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, where a Full Court of this court applied the test formulated by the Full Court of the Supreme Court of Victoria in Niemann v Electronic Industries Ltd [1978] VR 431.

Should there be leave to appeal from the Orders of 7 February 2007?

(a)        Paragraphs 3, 4 and 5

10                  The application for leave to appeal from these parts of the order can readily be disposed of, as the first two are related to pleadings to be filed by the respondents and have not been shown to have any detrimental impact on the applicant's conduct of the proceedings numbered VID 114 of 2006.  The adjournment to 23 February 2007 of the applicant's motion on notice dated 22 September 2006 has been overtaken by events because his Honour, on that date, that is 23 February, dismissed so much of the motion on notice dated 22 September 2006 as had not previously been disposed of.

(b)        Paragraph 1

11                  This paragraph, it will be recalled, dismissed the applicant’s motion on notice dated 27 October 2006.  As I understand it, that motion sought leave to issue subpoenas to unidentified persons to produce documents and give evidence.  However, his Honour made it clear at [3]-[5] of his reasons of 7 February 2007 that he did not intend, by dismissing the motion on notice of 27 October 2006, to shut the applicant out once and for all from having subpoenas issued to persons of whom it could be shown that they might be able to produce relevant documents or give relevant testimony.  His Honour there said;

‘3.        The applicant also supported her application for an adjournment upon the basis of her intention to seek leave to issue subpoenas directed to the parties who might be, but have not yet been, joined as respondents in the proceeding pursuant to another Notice of Motion which she filed on 22 September 2006.  Her submission in this regard was that the Notice of Motion of 27 October 2006 for leave to issue subpoenas would make more sense if it had already been determined whether there would be additional parties to the proceedings.  Indeed, she went so far as to say that until she knew whether those parties were to be added she would not be in a position to proceed with her motion.

4.         The Notice of Motion of 22 September 2006 dealt with a number of matters, one of which was that new parties be added to the proceedings.  There appears to be some uncertainty as to whether that motion was supported by any affidavit, and because that notice has not been listed before me today, I will say nothing further about it.  I do, however, propose to fix a date upon which that Notice of Motion will be dealt with by the court I will return to that subject later.  What is important for present purposes is whether the resolution of that Notice of Motion should be regarded as bearing upon the applicant's application for an adjournment of her Notice of Motion dated 27 October 2006.  Whilst I understand the applicant's point of view in this regard, I am not persuaded that it should.

5.         The applicant, as with any party, is at liberty to seek leave at any time to issue subpoenas, and given that her stated position is that the question of subpoenas cannot satisfactorily be resolved until the question of the parties has been resolved, I think the appropriate course is to dispose of the Notice of Motion of 27 October 2006 by dismissing it and to deal subsequently, as I have foreshadowed, with the notice of 22 September 2006 for the addition of new parties.  If it should transpire that other parties are joined to the proceeding then all the existing parties will of course have their usual rights in relation to subpoenas and other matters of procedure.  I propose to dismiss the applicant’s motion of which notice was given on 27 October 2006.’

12                  That passage makes it clear that his Honour considered that all of Ms Bahonko's rights in respect of subpoenas remained reserved to a time when she could demonstrate that their service on identified recipients was appropriate.  That exercise of discretion was clearly open to his Honour but, even supposing it to have been wrong, no substantial injustice to the applicant would result if it were left undisturbed.  For these reasons, leave to appeal from paragraph 1 of the order of 7 February 2007 must be refused.

(c)        Paragraph 2

13                  By this paragraph Jessup J dismissed the claims made in Ms Bahonko’s motion on notice dated 5 February 2007 for the relief, which I have already set out.  As to that part of the motion pertaining to Mr McKenney, his Honour said, at [7]-[9];

‘7.        The ground upon which the applicant asks the court to order that Mr McKenney stand down from the proceedings is that, at some point in conversation with her, Mr McKenney told her that he worked for the Federal Court.  I clarified with the applicant what Mr McKenney is supposed to have said, and she made it quite clear that he was then speaking in the present tense, that is to say, that as at the time when he had that conversation with her he was in the employ of the Federal Court.  Mr McKenney told me today that he never had such a conversation with the applicant.  He told me that he was not currently employed by this court, but that he was an associate to Keely J in 1990.  I do not propose to enter upon the question whether any such conversation as the applicant alleges in fact took place.  I accept, however, Mr McKenney's statement that he is not presently employed by the Federal Court and that he was once an associate to Keely J.  The fact that counsel for one of the parties in a proceeding was once an associate to a Judge of the court is manifestly no basis for that person not to continue as counsel representing his or her client.  The practice of Judges of this court having as associates persons who are in the early years of their experience as legal practitioners is widespread and longstanding; and it is a very common circumstance that former associates of Judges of this court appear in cases in the court from time to time.  I do not regard any allegation that a person thereby has some kind of institutional or other conflict of interest as having any foundation whatsoever.

8.         I rather gathered from the way the applicant supported this first order which she seeks that she relies also upon what she now says is a lie by Mr McKenney in conversation with her in saying that he worked for the Federal Court when in fact he did not.  As I have said, I do not propose to enter upon the question of whether such a conversation occurred and if so what was said in it.  I regard such matters as completely beyond the court's concern.  The court ought not to investigate communications between the parties at that level.  The court has no business instructing a party that it may not be represented by a particular person, even if the facts are as alleged by the applicant.

9.         The applicant, as I understand her grounds, seeks to give further support for this order by asserting, as she did orally that she once saw Mr McKenney in conversation with a member of the staff of the court, and that to her observation the conversation appeared to be amicable.  She gathered from that and submitted to me, that Mr McKenney had either associates, friends or agreeable contacts within the court, and that therefore I should assume that the ability of the court to do impartial justice as between the parties was compromised.  This is a submission of no substance.  I would hope that the staff members of the court converse agreeably with anyone who comes into contact with them as the occasion may demand.  It is very common for that to occur.  Members on the staff of the court must inevitably come into contact not only with litigants but also with their professional representatives.  It is notorious that they engage with them in an amicable and, one would hope, a satisfactory way.’

14                  I regard those observations, with respect, as unexceptionable.  It is to be borne in mind that the adjudication of issues raised by proceedings in this court is entrusted to judges of the court.  There is no foundation for the suggestion, implicit in paragraph 1 of the applicant's motion on notice of 5 February 2007, that any judge would betray his or her oath or affirmation of office by allowing cordial relations between court staff and any former associate or other former member of staff, who happened to be a legal practitioner representing a party, to influence the outcome of proceedings involving that party.  This part of the application for leave to appeal, therefore, fails the first test endorsed by the Full Court in Décor Corporation Pty Ltd 33 FCR 397, namely that the decision of Jessup J be attended by sufficient doubt to warrant reconsideration on appeal.  It must, accordingly, be refused.

15                  Jessup J, in his reasons of 7 February, dealt at some length with the applicant’s request that the respondents be “given warning against committing a contempt of Court”.  I have been unable to detect even an arguable error of fact or law in that treatment by his Honour.  In some respects the exercise of discretion, which was clearly open, not to regard certain procedural transgressions imputed to the respondents as punishable as contempts, left it open for orders of the court to be enforced by other means.  In other respects related to production of documents on discovery, his Honour expressed himself as not persuaded that any misconduct had occurred by redaction of parts of documents or otherwise which would warrant invoking this court’s power to punish for contempt.

16                  It is important to bear in mind that the power of the court to punish for a contempt, other than one committed in the face of the court, can only be exercised by motion on notice accompanied by a statement of charge.  See O 40 rr 5 and 6 of the Federal Court Rules.  If the court considers that such a proceeding should be initiated on its own motion, that should be done by the Registrar upon direction;  O 40 r 10.  I entertain very considerable doubts whether the issue of a “warning” in relation to an alleged contempt is within the range of orders which the court may make in exercise of the power conferred by section 31 of the Federal Court of Australia Act 1976 (Cth) or otherwise.  However, I am not persuaded that his Honour’s treatment of this part of the applicant's motion was attended by any doubt, or that it caused any substantial injustice to the applicant.  For these reasons, her attack on paragraph 2 of his Honour’s order of 7 February 2007 dismissing so much of her motion as sought, that the respondents be “warned” against contempt, must be rejected.

(d)        Paragraph 6

17                  By this paragraph, it will be recalled, Jessup J ordered that the applicant's proceeding be listed for trial on 2 April 2007 with an estimate of three days.  The applicant's evidence in support of her attack on this procedural exercise of discretion by his Honour appears to be based on what she perceived as a deprivation of her rights to issue subpoenas.  As I have already noted earlier in these reasons, there was no deprivation once and for all of her right to issue subpoenas to properly identified recipients.  If the issue of such subpoenas and the production of documents in response to them cannot be achieved in sufficient time to allow the applicant to prepare adequately for a trial to commence on 2 April 2007, that can be the basis of an application to his Honour for a deferral of the trial.  A decision by a docket judge to grant or refuse an adjournment will only be reviewed on appeal where it has the effect of extinguishing altogether the rights of a party, or of causing substantial and irremediable injustice to a party.  See, for example, Sali v SPC Ltd (1993) 116 ALR 625 at 628 citing Maxwell v Keun (1928) 1 KB 645.  I am not able to anticipate that an application on proper grounds for an adjournment of the trial from 2 April 2007 will be refused by the docket judge, or that the commencement of the trial on that date will extinguish altogether the applicant's rights or cause her substantial injustice.  For these reasons, leave to appeal from paragraph 6 of Jessup J’s order of 7 February 2007 must be refused.

Should there be leave to appeal from the orders of 23 February 2007?

(a)        Dismissal of the motion on notice dated 22 February 2007

18                  I turn, then, to the question of leave to appeal from the orders of 23 February 2007.  The first of those orders effected the dismissal of the motion on notice dated 22 February 2007.  That motion sought, first, the adjournment of the directions hearing scheduled for 23 February 2007 to a date to be fixed.  As the directions hearing on that date had already occurred before the motion on notice dated 22 February 2007 came on for hearing, this part of the relief sought by the applicant has been overtaken by events and need not be considered further.

19                  The second order sought by the same motion on notice was that;

‘Justice Jessup stands down from hearing the matter No VID 114/2006.’

20                  As far as I can gather from the affidavits filed by the applicant in support of her various motions, the applicant’s grounds for seeking this order, which, in substance, is an application for leave to appeal from a refusal by his Honour to disqualify himself from further hearing her application, are;

(i)         His Honour, in the course of various interlocutory applications, treated the applicant, to her detriment, differently from the respondents.  In particular, it was alleged that the respondents were granted indulgences and excused for non-compliance with time limits imposed by the Rules or orders of the court without formally seeking leave or otherwise invoking such a favourable exercise of discretion.  By contrast, his Honour was said to have “verbally attacked” and “psychologically bashed” the applicant during the hearing on 7 February 2007, including by asking her in an allegedly intimidating manner;

‘Do you, Ms Bahonko, still represent yourself?’

(ii)        His Honour’s disregard of the applicant’s request to warn the respondents and their Counsel that they were at risk of being dealt with for contempt of court;  see [13]-[15 above.

(iii)       His Honour’s refusal to accede to the applicant’s request for the joinder of additional parties as respondents to the proceedings.

(iv)       The fixing of the application for a three day trial to commence on 2 April 2007 over the applicant’s objections that she could not be ready for trial on that date.

(v)        The change of date of an interlocutory hearing originally notified to occur on 9 February 2007 to 7 February 2007 to accommodate the desire of the Victorian Government Solicitor to prosecute in the Practice Court of the Supreme Court of Victoria on 9 February an application involving the applicant.  It is alleged by the applicant that the Victorian Government Solicitor has “interfered with all my cases in the Victorian as well as the Federal Courts including this case under Justice Jessup.”

21                  It is particularly invidious for one judge to have to consider whether another judge of the same court has so conducted himself or herself in the management of a case through its interlocutory stages as to create a reasonable apprehension that he or she might not bring an impartial or unprejudiced mind to an adjudication on the merits at trial.  Consistently with the principles outlined in Decor Corporation Pty Ltd 33 FCR 397,which I have already discussed, it is first necessary for the applicant to show that Jessup J’s refusal to disqualify himself was attended by sufficient doubt to warrant reconsideration on appeal. 

22                  When pressed, during the hearing on 27 February 2007 of her application for leave to appeal, for instances of statements by his Honour which she relied on as establishing a reasonable apprehension of bias, the applicant said that she had been hampered in the presentation of that part of her case by lack of access to the transcripts of the hearings on 7 and 23 February 2007.  The application for leave to appeal was, accordingly, adjourned until today and arrangements were made for the applicant to be provided with those transcripts.  The applicant has availed herself of that opportunity and has filed supplementary submissions in two parts to reinforce her earlier contentions in support of a grant of leave to appeal.

23                  I have read each part of those supplementary written submissions and I have heard Ms Bahonko’s oral arguments amplifying them.  I have also examined for myself the relevant parts of each of the transcripts of the hearings on 7 February and 23 February 2007.  At the end of that process, I have been completely unpersuaded that Jessup J’s refusal to disqualify himself was attended by sufficient doubt to warrant reconsideration on appeal.  It is appropriate, in explaining the applicant’s failure to persuade me in the requisite sense, to touch on each of the grounds of her allegation of apprehended bias which I have already identified.

(i)         I do not consider that anything which his Honour did by way of relieving the respondents from strict compliance with the rules or earlier orders without the need for formal application went beyond what was entirely appropriate by way of efficiently and expeditiously readying the applicant's application for trial.  I have found no warrant in either transcript for the assertion that his Honour intimidated or psychologically harassed the applicant.  His opening question on 7 February 2007 was;

‘Ms Bahonko, you are representing yourself this morning again, are you?’

That was echoed in similarly courteous terms on 23 February 2007, when his Honour asked:

‘Yes, Ms Bahonko, you are conducting your own case this morning?’

Significantly, the applicant makes no complaint of psychological intimidation at the outset of that second hearing.

(ii)        For the reasons already explained at [16] above in dealing with his Honour’s refusal to accede to paragraph 2 of the applicant’s motion on notice dated 5 February 2007 seeking that the respondents be given warning in relation to contempt of court, his Honour's rejection of that request was entirely proper.  It, therefore, cannot sustain an allegation of apprehended bias.

(iii)       As I have already noted, his Honour did not peremptorily refuse the applicant’s request to join additional respondents.  On 7 February 2007, as his Honour’s reasons of that date, from which I have already quoted, make clear, he then left open the question of joinder of additional respondents.  That question was extensively considered on 23 February and full and dispassionate explanations were given at paragraphs [33]-[46] of his Honour’s reasons of that date for refusing to add as respondents any of the Commonwealth Minister for Employment and Workplace Relations, the Commonwealth Department of Employment and Workplace Relations and the Victorian Minister for Human Services, all of whom had been proposed by the applicant as additional respondents.  It follows that, like his treatment of the request to warn the respondents against contempt of Court, his Honour’s refusal to join the proposed additional defendants cannot support an imputation of apprehended bias.

(iv)       I do not understand his Honour to have determined irrevocably that the trial of Ms Bahonko’s application must commence on 2 April 2007 and must be completed in the ensuing three days.  That is borne out by these observations of his Honour, at [17] of his reasons of 23 February 2007, explaining why he had proposed to deal then with the applicant's motion to join additional respondents.  I shall discuss that explanation shortly;

‘17.      As to the other aspect of the applicant's notice of motion filed yesterday, I agree with the submission made on behalf of the respondents that the fate of the orders which I made on 7 February 2007 will not bear upon the proper disposition of the applicant's notice of motion of 22 September 2006.  As Mr McKenney pointed out, one of the orders sought in that notice is that new parties be added to the proceeding.  Since the matter is listed for trial on 2 April 2007, if I should be persuaded that new parties need to be added to the proceeding, there is no time to be wasted in having them served and in hearing from them as to whether they would be ready to participate in a trial on 2 April 2007.  I think it is very much in the interests of justice that this outstanding notice of motion be dealt with one way or the other, so that both sides in this consolidated proceeding can, with confidence, prepare themselves for the trial date.’

(v)        The fifth ground on which the allegation of apprehended bias was founded was the change of date of the interlocutory hearing fixed for 9 February 2007 to 7 February 2007.  That change has been clearly explained by the docket judge in these terms, at [11] and [15] of his reasons of 23 February;

‘11.      Thirdly, the applicant points to the circumstance that the interlocutory hearing on 7 February 2007 was originally listed for 9 February 2007.  At the initiative of the court, the original listing was brought forward by two days on account of the pressure of business that would be before the court on 9 February.  This rearrangement was effected, so far as the applicant is concerned, by my associate telephoning her and proposing the new date.  The applicant has told me this morning that, when my associate telephoned, she agreed to the new date.  However, according to her affidavit and to what she has submitted this morning, shortly after she agreed to that rescheduling of the hearing before me, she received a notification of a summons issued, she tells me, by the Victorian Government solicitor returnable on 9 February 2007 in the Practice Court of the Supreme Court of Victoria.  As best I understand her argument in this regard, she says that that was a vexatious summons on the part of the Victorian Government solicitor and that the rescheduling of the hearing before me from 9 to 7 February 2007 made her available to attend the Practice Court on 9 February 2007.  She contends that that constitutes circumstantial evidence that my associate had an arrangement of some kind with the Victorian Government solicitor to facilitate the applicant's appearance in the Practice Court when the applicant would, it seems, much prefer to have had the excuse of a proceeding in this court for not having to attend before the Practice Court.

………

15.       In relation to what I can only describe as a highly circumstantial conspiracy theory about the reason for the hearing of the previous notice of motion being brought forward by two days, I am satisfied that there is no evidence or other substance in the very unusual allegation made by the applicant in that regard.’

24                  That explanation, I consider, provides a complete answer to the contention in this respect advanced by the applicant.  I say that, notwithstanding the renewed assertion this morning that an examination of the Court List for 9 February tended to cast doubt on his Honour’s assertion that the change of date for the directions hearing in the applicant’s matter had been occasioned by the pressure of business that would be before the Court on 9 February.  It is notorious that daily Court Lists are not a reliable guide to the pressure of business that is before the Court on a particular date, and it is also not unknown for a number of matters in a directions list to be resolved by consent or taken out of the list in the days preceding their listing.

25                  That completes my examination of the specific grounds which I have identified as forming the basis for the applicant’s imputation of apprehended bias.  Even if, contrary to my firm conviction, there were some basis for an apprehension that the docket judge has been biased against the applicant, that would not avail her, on the present application for leave to appeal.  That is because Jessup J’s refusal to disqualify himself has not resulted in substantial injustice to the applicant so as to satisfy the second limb of the test in Décor Corporation Pty Ltd 33 FCR 397.

26                  It is clear that his Honour’s ruling on an application that he disqualify himself, if followed by orders affecting the rights of the parties, will be subject to appeal as of right;  Gas and Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48.  Consequently, if the applicant were to exercise her right of appeal in respect of some final order which may be made in the determination of her application, she would be able, in the course of that appeal, to ventilate fully her complaints of apprehended bias.  It follows that a refusal of leave to appeal at this stage will cause her no detriment, other than the burden of a three day trial, which will be wasted if her complaints are made out and a new trial is ordered.  That detriment can, largely, be alleviated by an appropriate order for costs and, perhaps, by the preservation of evidence given in the presumptively aborted trial.

27                  For these reasons, the applicant has not satisfied the second limb of the test in Décor Corporation Pty Ltd 33 FCR 397 by showing that substantial injustice will result from a denial of leave supposing Jessup J’s refusal to disqualify himself to have been wrong.

28                  I turn, then, to deal with the dismissal of the remaining claims for relief in the motion of notice dated 22 February 2007.  No attack has been mounted, separately from that based on apprehended bias, on Jessup J’s refusal to join the Ministerial and Departmental respondents, identified earlier in these reasons, whom the applicant proposed to add.  In any event, as I have already made clear, I am not persuaded that his Honour’s reasons for refusing to add those respondents are attended by sufficient doubt to warrant reconsideration on appeal.

29                  The remaining order, made on 23 February 2007, which I deal with lastly, was an order giving the applicant leave to inspect, by appointment at the Registry of the Court, documents which the respondents were to undertake to produce to the Registry.  That order can only have been of benefit to the applicant and cannot support a contention that substantial injustice would result if it were allowed to stand.

Conclusion

30                  For the reasons which I have endeavoured to explain, the applicant has not overcome the barrier which the case law shows to stand in the way of a party who seeks leave to appeal from procedural directions or other interlocutory orders made in the course of making an application ready for trial.  Many of the orders about which the applicant has complained go to matters of practice and procedure.  As the High Court has observed in Adam P Brown Male Fashions Pty Ltd v Phillip Morris Incorporated (1981) 148 CLR 170, at 177;

‘Appellate Courts exercise particular caution in reviewing decisions pertaining to practice and procedure.’

31                  The application for leave to appeal against each of the orders made respectively on 7 and 23 February 2007 is, therefore, refused with costs.

Associate:

Dated:         19 March 2007